D. Dailey and others v. J. H. Starr and another, Administrators, &c., 26 Tex. 562

Bell, J. There were many bills of exception" taken in the course of the trial of this case in the court, below, and numerous errors are assigned, some of which we deem only worthy of a passing notice. In relation to the first exception taken, which was to the admissibility of the deed from Bean to Thom and Pinckney, on. the ground that it was not properly authenticated for record, we think it sufficient to say, that the authentication was in the form commonly in use in those days, and although it may be slightly obnoxious to verbal criticism, it has always been held to be in compliance with the statute.

The main question in the case arises upon the ruling of the court below admitting in evidence the deed from Bean to Thorn and Pinckney, without the production of any power of attorney from Aranjo to Bean, and upon the charge of the court. We deem it unnecessary in this case to enter at large into a discussion of the doctrine of presumed grants. It is contended by counsel for the appellants that the doctrine ought not to be applied in this country, where the law makes provision for the registration of deeds. This question was discussed in the case of Doe v. Hirst, 11th Price, 475.

The better opinion seems to be, says Mr. Greenleaf, that though the court will not, in such case, presume the existence of a deed as a mere inference of law, yet the fact is open for the jury to find as in other cases. (1st Greenl. Evid, page 60, note 3.) It seems however to be well settled that the power to execute a deed will in many cases be presumed. (2d Cow. & Hill’s Notes to Phillips on Evid., pages 812, 813. See, also, the case of Watrous v. McGrew, 16th Tex.

Rep., 506, and cases cited.) In the present case there are circumstances in evidence, beyond the execution of the deed from Bean to Thorn and Pinckney, and the recital contained in it that Bean was the attorney in fact of Aranjo, to aid the presumption that such was the fact, and that a power of attorney from Aranjo to Bean did exist. In the original title papers of Aranjo, which were in evidence, it is shown that Bean made application as tlxe attorney of Aranjo, for the survey of the land, and the extension of final title.

In his application to the commissioner Aldrete, he asserts that he is the attorney of the citizen Gavino Aranjo, and makes reference to documents 1 and 2 annexed to his application as evidence of the fact. The commissioner, in making the order of survey, refers to “ accompanying documents,” and says “ let the documents claimed by the party be returned to him,” which may be supposed to refer to documents claimed by Bean. The deed from Bean to Thom and Pinckney was executed on the 20th of March, 1837. In this deed he describes himself as the attorney in fact for Gavino Aranjo.

He also warrants the title against all persons claiming either under Aranjo or himself. It is shown that the original testimonio issued to Aranjo was in the possession of Thorn and Pinckney from the time of their purchase from Bean, and had been recorded by them at the date of the purchase from Bean. Visible and notorious acts of ownership over the land, from the year 1839 until the institution of this suit, were shown to have been exercised by Thorn and Pinckney, and their representatives, and those claiming and holding under them, accompanied by payment of taxes.

Under these circumstances, we are of opinion that the court below did not err in instructing the jury that a power to sell in Bean would be presumed. Nor do we think there was error in permitting the plaintiffs below to make proof of the notoriety of their claim of title. Such evidence tended to show acquiescence in their claim by Aranjo- and his heirs, and to strengthen the presumption that the title had passed from them.

In relation to the testimony of the witness, Belt, it may be remarked, that even if it were improper to admit his statement that he had heard Aranjo say that he had given Bean a power of attorney authorizing him to get the title to the. land and sell the-same, the judgment ought not to be reversed for this, cause, because the other facts in evidence were sufficient to authorize the-presumption that such a power of attorney existed, and the jury acted under the instruction of the court in indulging the presumption.

The other statement of the witness, Belt, that he had heard Aranjo say that he had sold the land to Bean, and that Bean had paid him for it, only tends to raise the additional presumption that the power of attorney from Aranjo to Bean was merely a form to secure to Bean what had really been sold to him and paid for by him. It would be difficult to lay down, so as to answer any beneficial purpose, the circumstances under which deeds will be presumed to have existed.

But there is in the present case so many badges of a meritorious title in the appellees, that we think the- court below did not err in instructing the jury to indulge the- presumption, which alone was wanting to give it legal efficiency. There was no error in admitting in evidence the record of thfe District Court of Tyler county, showing partition between Thorn and the heirs of Pinckney, and the copy of the decree of the Probate Court of Nacogdoches county, showing partition between the estate of Frost Thorn and the surviving wife of said Thorn.

These decrees constituted links in the chain of title of the plaintiffs below. The judgment of the court below is affirmed. ■ Judgment affirmed.